Exhibit 4.4
THIS
SECURITY AND THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON
EXERCISE OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES
ACT ”) OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER
OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A SECURITIES
PURCHASE AGREEMENT, DATED AS OF AUGUST 5, 2005 BY AND AMONG
CLEARWIRE CORPORATION, THE GUARANTORS AND THE BUYERS REFERRED TO
THEREIN (THE “ SECURITIES PURCHASE AGREEMENT ”)
AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY
WITH THE PROVISIONS OF SUCH SECURITIES PURCHASE AGREEMENT. THE
HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT, DATED AS OF AUGUST 5, 2005 BY AND
AMONG CLEARWIRE CORPORATION AND THE BUYERS REFERRED TO THEREIN (THE
“ REGISTRATION RIGHTS AGREEMENT ”) AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE
PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT. NO TRANSFER OF
THIS WARRANT SHALL BE MADE WITHOUT COMPLYING WITH THE PROVISIONS OF
SECTION 7(a) OF THIS WARRANT.
WARRANT TO PURCHASE CLASS A
COMMON SHARES
Warrant
No.:
Number of Class A Common Shares:
Date of
Issuance: (“
Issuance Date ”)
Clearwire
Corporation, a corporation incorporated under the laws of the state
of Delaware (the “ Company ”), hereby certifies
that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Cede & Co., the
registered holder hereof or its permitted assigns (the “
Holder ”), is entitled, subject to the terms set forth
below, to purchase from the Company, at the Exercise Price (as
defined below) then in effect, upon surrender of this Warrant to
purchase Class A Common Shares (as defined herein) (including
any Warrants to purchase Class A Common Shares issued in
exchange, transfer or replacement hereof, the “
Warrant ”), at any time or times, but not after
11:59 p.m., New York Time, on the Expiration Date (as defined
below),
fully paid nonassessable Class A Common Shares (the “
Warrant Shares ”). Except as otherwise defined herein,
capitalized terms in this Warrant shall have the meanings set forth
in Section 16. This Warrant is one of the Warrants to purchase
Class A Common Shares (the “ SPA Warrants
”) issued pursuant to Section 1 of that certain
Securities Purchase Agreement (the “ Securities Purchase
Agreement ”), dated as of August 5, 2005 (the
“ Subscription Date ”), by and among the Company
and the investors referred to therein (the “ Buyers
”).
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(a)
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Mechanics of Exercise
. Subject to the terms
and conditions hereof (including, without limitation, the
limitations set forth in Section 1(f)), this Warrant may be
exercised by the Holder, in whole or in part, by (i) delivery
by facsimile with a confirmatory written notice by overnight
delivery, in the form attached hereto as Exhibit A (the
“ Exercise Notice ”), of the Holder’s
election to exercise this Warrant, (ii) delivery of a signed
letter substantially in the form attached hereto as
Exhibit B (the “ Recertification Letter
”), and (iii)(A) payment to the Company of an amount equal to
the applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “
Aggregate Exercise Price ”) in cash or wire transfer
of immediately available funds or (B) by notifying the Company
that this Warrant is being exercised pursuant to a Cashless
Exercise (as defined in Section 1(d)). The Holder shall not be
required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Exercise Notice
with respect to less than all of the Warrant Shares shall have the
same effect as cancellation of the original Warrant and issuance of
a new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. On or before the second Business Day following
the date on which the Company has received each of the Exercise
Notice, the Recertification Letter and the Aggregate Exercise Price
(or notice of a Cashless Exercise) (the “ Exercise
Delivery Documents ”), the Company shall transmit by
facsimile an
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acknowledgment
of confirmation of receipt of the Exercise Delivery Documents to
the Holder and the Company’s transfer agent (the “
Transfer Agent ”). On or before the third Business Day
following the date on which the Company has received all of the
Exercise Delivery Documents (the “ Share Delivery Date
”), the Company shall, subject to applicable law (X)
provided that the Transfer Agent is participating in The
Depository Trust Company (“ DTC ”) Fast
Automated Securities Transfer Program, upon the request of the
Holder, credit such aggregate number of Class A Common Shares
to which the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and dispatch by
overnight courier to the address as specified in the Exercise
Notice, a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number
of Class A Common Shares to which the Holder is entitled
pursuant to such exercise. Upon delivery of the Exercise Notice and
Aggregate Exercise Price referred to in clause (iii)(A) above or
notification to the Company of a Cashless Exercise referred to in
Section 1(d), the Holder shall be deemed for all corporate
purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective
of the date of delivery of the certificates evidencing such Warrant
Shares. If this Warrant is submitted in connection with any
exercise pursuant to this Section 1(a) and the number of Warrant
Shares represented by this Warrant submitted for exercise is
greater than the number of Warrant Shares being acquired upon an
exercise, then the Company shall as soon as practicable and in no
event later than three Business Days after any exercise and at its
own expense, issue a new Warrant (in accordance with
Section 7(d)) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under
this Warrant, less the number of Warrant Shares with respect to
which this Warrant is exercised. No fractional Class A Common
Shares are to be issued upon the exercise of this Warrant, but
rather the number of Class A Common Shares to be issued shall
be rounded up to the nearest whole number. If a Holder exercises a
Warrant, the Company shall pay any transfer, stamp or similar taxes
or duties related to the issue or delivery of Class A Common
Shares upon such exercise. In addition, the Holder shall pay any
such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder’s name. The Transfer
Agent may refuse to deliver the certificate representing the
Class A Common Shares being issued in a name other than the
Holder’s name until the Transfer Agent receives a sum
sufficient to pay any tax which will be due because such shares are
to be issued in a name other than the Holder’s name. Nothing
herein shall preclude any tax withholding required by law or
regulation.
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(b)
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Exercise Price
. For purposes of this
Warrant, “ Exercise Price ” means, subject to
adjustment as provided herein, the lesser of (x) $15.00 and
(y) the arithmetic average of the Volume Weighted Average
Price of the Class A Common Shares on the Principal Market for
the first twenty (20) Trading Days after the expiration (the
“ Qualified IPO Lock-Up Expiration Date ”) of
any lock-up restrictions which the Holder entered into in
connection with a Qualified IPO; provided, that,
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if (i) the
Qualified IPO Lock-Up Expiration Date has not occurred or
(ii) a Qualified IPO has not yet occurred on or before the
date of exercise, the Exercise Price shall mean $15.00.
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(c)
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Company’s Failure to Timely
Deliver Securities . Subject to Section 13, if
within three (3) Trading Days after the Company’s
receipt of the facsimile copy of an Exercise Notice, with
confirmatory notice by overnight delivery, the Company shall fail
to issue and deliver a certificate to the Holder and register such
Class A Common Shares on the Company’s share register or
credit the Holder’s balance account with DTC for the number
of Class A Common Shares to which the Holder is entitled upon
such holder’s exercise hereunder, and if on or after such
Trading Day the Holder purchases (in an open market transaction or
otherwise) Class A Common Shares to deliver in satisfaction of
a sale by the Holder of Class A Common Shares issuable upon
such exercise that the Holder anticipated receiving from the
Company (a “ Buy-In ”), then the Company shall,
within three Business Days after the Holder’s request, pay
cash to the Holder in an amount equal to the Holder’s total
purchase price (including brokerage commissions, if any) for the
Class A Common Shares so purchased (the “ Buy-In
Price ”), at which point the Company’s obligation
to deliver such certificate (and to issue such Class A Common
Shares) shall terminate.
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(d)
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Cashless Exercise
. Notwithstanding
anything contained herein to the contrary, the Holder may, in its
sole discretion, exercise this Warrant in whole or in part and, in
lieu of making the cash payment otherwise contemplated to be made
to the Company upon such exercise in payment of the Aggregate
Exercise Price, elect instead to receive upon such exercise the
“Net Number” of Class A Common Shares determined
according to the following formula (a “ Cashless
Exercise ”):
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(A x B) - (A x C)
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B
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For purposes of
the foregoing formula:
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A= the total
number of shares with respect to which this Warrant is then being
exercised.
B= the
arithmetic average of the Volume Weighted Average Price of the
Class A Common Shares during the twenty (20) Trading Days
immediately preceding the date of the Exercise Notice.
C= the Exercise
Price then in effect for the applicable Warrant Shares at the time
of such exercise.
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(e)
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Disputes . In the case of a dispute as to the
determination of the Exercise Price or the arithmetic calculation
of the Warrant Shares, the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and
resolve such dispute in accordance with Section 13.
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(f)
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Limitations on Exercises; Beneficial
Ownership .
Other than in contemplation of, upon and following a Change of
Control, the Company shall not effect the exercise of this Warrant,
and the Holder shall not have the right to exercise this Warrant,
to the extent that after giving effect to such exercise, the Holder
(together with the Holder’s affiliates) would beneficially
own in excess of 4.99% (the “ Exercise Limitation
”) of the Class A Common Shares outstanding immediately
after giving effect to such exercise. For purposes of the foregoing
sentence, the Class A Common Shares beneficially owned by the
Holder and its affiliates shall include the Class A Common
Shares issuable upon exercise of the Warrants with respect to which
the determination of such sentence is being made, but shall exclude
the Class A Common Shares which would be issuable upon
(i) exercise of the remaining, unexercised portion of the
Warrants beneficially owned by the Holder or any of its affiliates
and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company
beneficially owned by such Holder or any of its affiliates
(including, without limitation, any notes or warrants) subject to a
limitation on conversion or exercise analogous to the limitation
contained herein. Except as set forth in the preceding sentence,
for purposes of this Section 1(f), beneficial ownership shall
be calculated in accordance with Section 13(d) of the United States
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”). For purposes of this
Section 1(f), in determining the number of outstanding
Class A Common Shares, the Holder may rely on the number of
outstanding Class A Common Shares as reflected in (x) the
Company’s most recent public filing with the United States
Securities and Exchange Commission (the “ SEC
”), as the case may be, (y) a recent public announcement
by the Company or (z) any other notice by the Company or the
Transfer Agent setting forth the number of Class A Common
Shares outstanding. For any reason at any time, upon the written or
oral request of the Holder, the Company shall within two
(2) Business Days confirm orally and in writing to the Holder
the number of Class A Common Shares then outstanding. In any
case, the number of outstanding Class A Common Shares shall be
determined after giving effect to the conversion or exercise of
securities of the Company, including the SPA Warrants, by the
Holder or its affiliates since the date as of which such number of
outstanding Class A Common Shares was reported. By written
notice to the Company, the Holder may increase or decrease the
Exercise Limitation to any other percentage not in excess of 9.99%
specified in such notice; provided that (A) any such
increase will not be effective until the sixty-first (61
st
) day after such notice
is delivered to the Company, and (B) any such increase or
decrease will apply only to the Holder and not to any other holder
of SPA Warrants. Notwithstanding anything to the contrary, this
provision shall only apply from and after the time that the Company
shall have registered securities pursuant to Section 12 of the
Exchange Act.
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2.
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ADJUSTMENT OF EXERCISE PRICE AND
NUMBER OF WARRANT SHARES . The Exercise Price and the number
of Warrant Shares shall be adjusted from time to time as
follows:
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(a)
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Adjustment Upon Subdivision or
Combination of Class A Common Shares . If the Company at any time on or
after the Subscription Date subdivides (by any stock
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split, stock
dividend, recapitalization or otherwise) one or more classes of its
outstanding Class A Common Shares into a greater number of
shares, the Exercise Price in effect immediately prior to such
subdivision will be proportionately reduced and the number of
Warrant Shares will be proportionately increased. If the Company at
any time on or after the Subscription Date combines (by
combination, reverse stock split or otherwise) one or more classes
of its outstanding Class A Common Shares into a smaller number
of shares, the Exercise Price in effect immediately prior to such
combination will be proportionately increased and the number of
Warrant Shares will be proportionately decreased. Any adjustment
under this Section 2(a) shall become effective at the close of
business on the date the subdivision or combination becomes
effective.
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(b)
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Other Events . If any event (but, for the
avoidance of doubt, excluding Class A Common Shares deemed to
have been issued by the Company in connection with any Excluded
Securities) occurs of the type contemplated by the provisions of
this Section 2 but not expressly provided for by such provisions
(including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features),
then the Company’s Board of Directors will make an
appropriate adjustment in the Exercise Price and the number of
Warrant Shares so as to protect the rights of the Holder;
provided , that no such adjustment pursuant to this Section
2(b) will increase the Exercise Price or decrease the number of
Warrant Shares as otherwise determined pursuant to this
Section 2.
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(c)
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Notice of Adjustments; Warrant
Deemed Outstanding . Upon any adjustment of the
Exercise Price or of the number or kind of securities into which
this Warrant is exercisable pursuant to the terms of this Warrant,
the Company shall give written notice thereof to the Holder, which
notice shall state the Exercise Price or the number of Warrant
Shares or other securities subject to this Warrant resulting from
such adjustment, as the case may be, and shall set forth in
reasonable detail the method of such calculation and the facts upon
which such calculation is based. If during the period beginning on
and including August 5, 2005 and ending on the date
immediately preceding the issuance date of the Predecessor Warrant,
the Company entered into, or in accordance with terms of this
Warrant would have been deemed to have entered into (had this
Warrant been outstanding at such time), any issuance or sale, or in
accordance with this Section 2 deemed issuance or sale, of any
Class A Common Shares (including the issuance or sale of
Class A Common Shares owned or held by or for the account of
the Company), but excluding Class A Common Shares deemed to
have been issued by the Company in connection with any Excluded
Securities (as defined in Section 8(a)(i) below); for a
consideration per share (the “ New Issuance Price
”) less than a price (the “ Applicable Price
”) equal to the Exercise Price in effect immediately prior to
such issue or sale or deemed issuance or sale (the foregoing a
“ Dilutive Issuance ”), subdivision, combination
or any other similar event, then solely for purposes of determining
any adjustment under this Section 2 as a result of such
Dilutive Issuance, deemed Dilutive Issuance, subdivision,
combination or other similar event, this Warrant shall be deemed to
have been outstanding for purposes
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of this
Section 2 at the time of each such Dilutive Issuance, deemed
Dilutive Issuance, subdivision, combination or other similar event,
as applicable.
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(d)
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Reorganization or
Reclassification . Any recapitalization,
reorganization or reclassification, in each case which is effected
in such a way that the holders of Class A Common Shares are
entitled to receive (either directly or upon subsequent
liquidation) stock, securities or assets with respect to or in
exchange for Class A Common Shares is referred to herein as
“ Organic Change .” Prior to the consummation of
any Organic Change, the Company shall make appropriate provision
(in form and substance reasonably satisfactory to the Holders) to
insure that each of the Holders shall thereafter have the right to
acquire and receive, in lieu of or addition to (as the case may be)
the shares of Class A Common Shares immediately theretofore
acquirable and receivable upon the exercise of such Holder’s
Warrant, such shares of stock, securities or assets as would have
been issued or payable in such Organic Change (if the holder had
exercised this Warrant immediately prior to such Organic Change)
with respect to or in exchange for the number of shares of Common
Stock immediately theretofore acquirable and receivable upon
exercise of such Holder’s Warrant had such Organic Change not
taken place. In any such case, the Company shall make appropriate
provision (in form and substance reasonably satisfactory to the
Holders) with respect to such Holders’ rights and interests
to insure that the provisions of this Section 2 and
Sections 3 and 4 hereof shall thereafter be applicable to the
Warrant.
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3.
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RIGHTS UPON DISTRIBUTION OF
ASSETS .
Subject to Section 4(a), if the Company shall declare or make
any dividend or other distribution of its assets (or rights to
acquire its assets) to holders of Class A Common Shares, by
way of return of capital or otherwise (including, without
limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off,
reclassification, corporate rearrangement, scheme of arrangement or
other similar transaction) (a “ Distribution ”),
at any time after the issuance of this Warrant, then, in each such
case:
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(a)
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any
Exercise Price in effect immediately prior to the close of business
on the record date fixed for the determination of holders of
Class A Common Shares entitled to receive the Distribution
shall be reduced, effective as of the close of business on such
record date, to a price determined by multiplying such Exercise
Price by a fraction of which (i) the numerator shall be the
Closing Bid Price of the Class A Common Shares on the Trading
Day immediately preceding such record date minus the value of the
Distribution (as determined in good faith by the Company’s
Board of Directors) applicable to one Class A Common Share,
and (ii) the denominator shall be the arithmetic average of
the Closing Bid Price of the Class A Common Shares during the
twenty (20) Trading Days immediately preceding such record
date; and
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(b)
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the
number of Warrant Shares shall be increased to a number of shares
equal to the number of Class A Common Shares obtainable
immediately prior to the close of business on the record date fixed
for the determination of holders of Class A Common Shares
entitled to receive the Distribution multiplied by the
reciprocal
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of the fraction
set forth in the immediately preceding paragraph (a);
provided , that in the event that the Distribution is of
Capital Stock (“ Other Capital Stock ”) of a
company whose Capital Stock is traded on a national securities
exchange or a national automated quotation system, then the Holder
may elect to receive a warrant to purchase Other Capital Stock in
lieu of an increase in the number of Warrant Shares, the terms of
which shall be identical to those of this Warrant, except that such
warrant shall be exercisable into the number of shares of Other
Capital Stock that would have been payable to the Holder pursuant
to the Distribution had the Holder exercised this Warrant
immediately prior to such record date and with an aggregate
exercise price equal to the product of the amount by which the
exercise price of this Warrant was decreased with respect to the
Distribution pursuant to the terms of the immediately preceding
paragraph (a) and the number of Warrant Shares calculated in
accordance with the first part of this paragraph (b).
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4.
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PURCHASE RIGHTS; CHANGE OF
CONTROL.
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(a)
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Purchase Rights
. If at any time the
Company grants, issues or sells any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property
(unless pursuant to pre-emptive rights existing on the date hereof
set forth on Schedule 3(o) to the Securities Purchase Agreement)
pro rata to all of record holders of Class A Common Shares
(the “ Purchase Rights ”), then, upon the
Holder’s election, the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights and in lieu of
any adjustments to which the Holder is otherwise entitled under
Section 3 above in respect of such Purchase Rights, the
aggregate Purchase Rights which the Holder could have acquired if
the Holder had held the number of Class A Common Shares
acquirable upon complete exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) immediately
before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken,
the date as of which the record holders of Class A Common
Shares are to be determined for the grant, issue or sale of such
Purchase Rights.
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(b)
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Change of Control
. The Company shall not
enter into or be party to a Change of Control unless the Successor
Entity assumes in writing all of the obligations of the Company
under this Warrant and the other Transaction Documents (as defined
in the Securities Purchase Agreement) in accordance with the
provisions of this Section (4)(b) pursuant to written agreements in
form and substance reasonably satisfactory to the Required Holders,
including agreements to deliver to each holder of SPA Warrants in
exchange for such SPA Warrants a security of the Successor Entity
evidenced by a written instrument substantially similar in form and
substance to this Warrant, including, without limitation, an
adjusted Exercise Price equal to the lesser of the Exercise Price
that is then in effect and the value for the Class A Common
Shares reflected by the terms of any such Change of Control
(provided that if over two-thirds of the consideration for the
Class A Common Shares in a Change of Control consists of cash
or property other than equity securities then the Exercise Price
shall be adjusted to the lesser of the Exercise Price that is then
in effect and the price that is 90% of the value for the
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Class A
Common Shares reflected by the Change of Control), exercisable for
the Adjusted Warrant Consideration (as defined below). Upon the
occurrence of any Change of Control, the Successor Entity, if other
than the Company, shall succeed to, and be substituted for (so that
from and after the date of such Change of Control, the provisions
of this Warrant referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and
power of the Company and shall assume all of the obligations of the
Company under this Warrant with the same effect as if such
Successor Entity had been named as the Company herein. Upon
consummation of any Change of Control, the Successor Entity shall
deliver to the Holder confirmation that there shall be issued upon
exercise of this Warrant at any time after the consummation of the
Change of Control, in lieu of the Class A Common Shares (or
other securities, cash, assets or other property) purchasable upon
the exercise of the Warrant prior to such Change of Control, such
shares of stock, securities, cash, assets or any other property
whatsoever (including warrants or other purchase or subscription
rights) which the Holder would have been entitled to receive upon
the happening of such Change of Control had this Warrant been
converted immediately prior to such Change of Control, as adjusted
in accordance with the provisions of this Warrant (the “
Adjusted Warrant Consideration ”). In addition to and
not in substitution for any other rights hereunder, prior to the
consummation of any Change of Control pursuant to which holders of
Class A Common Shares are entitled to receive securities or
other assets with respect to or in exchange for Class A Common
Shares (a “ Corporate Event ”), the Company
shall make appropriate provision to insure that the Holder will
thereafter have th
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